Please read these terms and conditions (the “Terms”) carefully as they contain important information regarding your legal rights, remedies, and obligations.  These terms govern your use of the Something Different, LLC’s website (the “Site”).  By accessing, viewing, or using the content, material, or services available on or through the Site, you hereby agree and acknowledge that you have read and understand that you are bound to a legal agreement between you and Something Different, LLC (“SD” or we” or “us” or “our”).  If you do not agree to these Terms, do not access, view or use the Site.

Proprietary Rights. As between you and SD, SD owns or licenses all data, content, graphics, forms, artwork, images, photographs, functional components, audio clips, video clips, software and software concepts and documentation and other material on, in or made available through the Site (“Site Material”), as well as the selection, coordination, arrangement, and organization and enhancement of the Site Material. You agree not to remove or alter any copyright notice or any other proprietary notice on any Site Materials.  Under no circumstances will you have any rights of any kind in or to the Site, other than the right to use the Site in accordance with these Terms and the limited fair use described herein.  Fair use of copyrighted material includes the use of protected materials for non-commercial educational purposes, such as teaching, scholarship, research, criticism, commentary, and news reporting.  Unless otherwise noted, you may download or print text and image files from this Site without SD’s written permission solely for such purposes, and only if you comply with the following conditions: (a) the content may only be used for personal, educational or noncommercial purposes; (b) you must cite the author and source of the content; (c) none of the content may be altered or modified; and (d) you must comply with all other terms or restrictions which may be applicable to the individual file, image or text.

The Digital Millennium Copyright Act of 1998 (“DMCA”).  The DMCA provides recourse to those who believe that material appearing on the Internet infringes their rights under U.S. copyright law.  If you believe in good faith that materials hosted by us infringe your copyright, you may send us a notice requesting that we remove the material or block access to it.  The notice must include the following information:

(a) Physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) Identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the Site are covered by a single notification, a representative list of such works); (c) Identification of the material that is claimed to be infringing or the subject of infringing activity and information reasonably sufficient to allow us to locate the material on the Site; (d) The name, address, telephone number, and email address of the complaining party; (e) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner or the law; and (f) A statement that the information in the notification is accurate and is given under penalty of perjury, and that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice.  Notices and counter-notices must meet current statutory requirements imposed by the DMCA; see http://www.copyright.gov/ for details.  Notices and counter-notices under the DMCA, as well as all other communications addressed to us relating to these Terms, should be sent c/o [McGrail & Bensinger LLP, 888-C 8th Avenue #107, New York, NY 10019].  We strongly recommend that you consult your legal advisor before filing a notice or counter-notice.  Also, please be aware that penalties may apply for false claims under the DMCA.

Materials Submitted to the Site.  The Site may allow you to contribute content, information, text, files, graphics, personal listings, messages, postings, and other materials and information for access, use, and commentary by other visitors to the Site (“User Content”).  Upon your submission of User Content or other material or information to SD, you grant SD a worldwide, perpetual, non-terminable, irrevocable, transferable, license to access, use, distribute, perform, reproduce, display, modify, create derivative works based upon, and sublicense, and to permit others to access, use, distribute, perform, reproduce, display, modify and create derivative works based upon the User Content, all without any compensation to you whatsoever.

User Conduct.  You agree that you will not (a) use the Site for any illegal or unauthorized purposes that violate any laws (including import, export, and copyright laws); (b) modify, adapt, or hack into the Site or modify another website so as to falsely imply that it is associated with SD; (c) upload, post, host, or transmit unsolicited email, text messages, “spam” messages, worms or viruses or any code of a destructive nature; (d) contact any other visitor of the Site who has requested not to be contacted; or (e) attempt to gain unauthorized access to SD’s computer system or engage in any activity that interferes with the performance of, or impairs the functionality of, the site or any services provided through the Site. 

Payment.  By purchasing products on the Site, you agree that you are solely responsible for all fees or charges incurred by making any purchases on the Site.  The entire payment process, including reimbursements, is handled securely online through a method chosen by SD (“Payment Method”).  The Site may use a third-party payment processor to securely process payments.  By providing SD with payment under the Payment Method, you authorize SD to charge your account for all fees and charges due and payable to SD, without set-off, reduction, or holdback and without additional notice or consent. 

Links to Websites.  Our Site may contain links to third-party websites, products, services, or content that are not owned or controlled by SD (“Third-Party Materials”).  SD does not endorse, approve, or verify such Third-Party Materials.  SD has no control over, and assumes no responsibility for, Third-Party Materials. 

You acknowledge and agree that SD shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, goods, or services available on or through any Third-Party Materials.  We strongly advise you to read the terms and conditions and privacy policies of any third-party web sites or services that you visit.

Privacy.  Please click here for our privacy policy.  You will use the Site only in compliance with these Terms and with the privacy policy (“Privacy Policy”) that we publish or otherwise furnish to you and with all applicable laws, including all spamming, privacy, obscenity, and defamation laws.  You acknowledge that you have read our Privacy Policy and agree to its terms and conditions, including as they relate to data collection and usage and cookies, which are incorporated herein by reference.  You understand and agree that the Site is not intended for use by individuals under the age of thirteen (13), and you agree not to authorize such individuals to use your account.

Availability.  The Site is only for use by persons located in the United States.  We make no claims that the Site, Site Materials, or any of its content is accessible or appropriate outside of the United States. Access to the Site may not be legal by certain persons or in certain countries. If you access the Site from outside the United States, you do so on your own initiative and are responsible for compliance with local laws. 

Modifications.  SD reserves the right, in its sole discretion, to modify or replace the Terms at any time. Such modification or replacement shall be effective immediately, unless a revision is material, in which case SD will post the updated Terms on the Site for at least twenty (20) days after the changes take effect.  SD will determine what constitutes a material change in its sole and absolute discretion.

By continuing to access or use the Site after any revisions become effective, you agree to be bound by the revised terms.  If you do not agree to the new terms, please discontinue using the Site.

Indemnification.  You agree to defend, indemnify and hold harmless SD and its employees, contractors, agents, officers, directors, managers, members and owners, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) resulting from or arising out of (i) your use and access of the Site or (ii) a breach of these Terms.

Limitation of Liability.  IN NO EVENT SHALL SD OR ANY OF ITS OFFICERS, MANAGERS, MEMBERS, EMPLOYEES, PARTNERS, AGENTS, SUPPLIERS, OR AFFILIATES, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (I) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SITE; (II) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SITE; (III) ANY CONTENT OBTAINED FROM THE SITE; OR (IV) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE LIMITATIONS ABOVE MAY NOT APPLY TO YOU.

Disclaimer.  YOUR USE OF THE SITE IS AT YOUR SOLE RISK.  THE SITE IS AVAILABLE ON AN “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS.  THE SITE IS AVAILABLE WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND COURSE OF PERFORMANCE.

SD DOES NOT WARRANT THAT (I) THE SITE WILL FUNCTION UNINTERRUPTED, SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY ERRORS OR DEFECTS WILL BE CORRECTED; (III) THE SITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SITE WILL MEET YOUR REQUIREMENTS.

Governing Law and Jurisdiction.  The Terms shall be governed and construed in accordance with the laws of the State of New York without regard to its conflict of law provisions.  Any and all claims and controversies arising out of and related to the Privacy Policy or these Terms shall be settled in the courts of competent jurisdiction in the State of New York.  Any such claim or controversy shall be adjudicated on an individual basis and shall not be consolidated with a claim of any other party. The foregoing shall not preclude SD from seeking injunctive relief in any court of competent jurisdiction located in other countries and jurisdictions for protection of the SD intellectual property.

General.  These Terms set forth the entire understanding and agreement between you and SD with respect to the subject matter hereof.  If any provision(s) of these Terms shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not be in any way affected thereby.  You may not assign these Terms without our explicit consent.  You are responsible for fees associated with gaining access to the Site, including the fees associated with any equipment necessary to access the internet and the fees charged by, for example, your internet service provider and wireless carrier.  All provisions of the Terms which by their nature should survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability shall survive termination.